Vildirect: IncomeTax-caselaws-1975-VIL-33-SC-DT

1975-VIL-33-SC-DT

Equivalent Citation: [1975] 100 ITR 5 (SC)

Supreme Court of India

Date: 13.03.1975

TIWARI KANHAIYALAL

COMMISSIONER OF INCOME-TAX, DELHI

BENCH

Judge(s) : N. L. UNTWALIA. and A. ALAGIRISWAMI.

JUDGMENT

The judgment of the court was delivered by

UNTWALIA J.--These are 12 appeals filed by the appellant on grant of special leave by this court from the common judgment of the Rajasthan High Court allowing 12 criminal appeals filed by the respondent in accordance with section 417(3) of the Code of Criminal Procedure, 1898. The appellant as partner of his partnership firm filed 12 income-tax returns for various assessment years, the last one being the assessment year 1959-60. The returns were filed by the appellant between March 26, 1958, and October 16, 1961, in accordance with section 22(2) of the Indian Income-tax Act, 1922--hereinafter referred to as the 1922 Act. The said Act was repealed and replaced by the Income-tax Act, 1961--hereinafter called the 1961 Act. The 1961 Act came into force on or from April 1, 1962. During the course of the assessment proceedings when account books were produced for examination by the Income-tax Officer, Special Investigation Circle. " B ", Jaipur, he suspected their genuineness or correctness. In May, 1963, the appellant's premises were searched and a number of other books of account and documents were seized. Thereupon, the appellant filed revised returns on March 1, 1964, in respect of all the 12 periods. In the revised returns the total income shown was far greater than what was shown in the earlier returns. Income-tax was assessed after the filing of the revised returns in respect of all the periods in accordance with the 1961 Act. Penalty proceedings were initiated and penalty was levied in respect of each return under section 271(1)(c)(iii) of the 1961 Act. The respondent filed 12 complaints against the appellant alleging commission of offence by him under section 277 of the 1961 Act. Since the respondent was not quite sure of the legal position, as a matter of abundant precaution, 12 more complaints were filed on the same facts to make out commission of offence by the appellant under section 52 of the 1922 Act. The City Magistrate, Jaipur, in whose court all the 24 complaints were filed ordered the tagging of the 12 complaints filed later under section 52 of the 1922 Act with the complaints filed earlier under section 277 of the 1961 Act. To all intents and purposes, therefore, numerically the 24 complaints became 12 complaints for trial of the appellant under section 277 of the 1961 Act or section 52 of the 1922 Act, as the case may be.

After the commencement of the trial the appellant in each case filed a petition before the City Magistrate that the launching of the prosecution against him was bad and void in view of the provisions of section 29(4) of the 1922 Act read with article 20(1) of the Constitution of India. The Magistrate felt persuaded to accept the stand taken on behalf of the appellant and held that he could not be prosecuted after imposition of penalty under the taxing statute and acquitted the appellant in all the cases. The High Court has held that since no penalty was imposed on the petitioner or his firm under section 28 of the 1922 Act, section 28(4) was not a bar to the institution of the prosecution nor was it hit by article 20(1). The High Court did not express any view whether the offence, if any, committed by the appellant fell under section 277 of the 1961 Act or section 52 of the 1922 Act. The appeals were allowed and the Magistrate was directed to proceed with the trials in accordance with the law. Hence these appeals.

The only question failing for our determination in these appeals is whether institution of the prosecution against the appellant for the alleged commission of offences by him under either the 1961 or the 1922 Act was bad in law as being violative of section 28(4) of the 1922 Act or article 20(1).

Section 297(1) of the 1961 Act repealed the 1922 Act. Certain savings were provided in sub-section (2) some of which even without these express provisions could have been covered by section 6 of the General Clauses Act, 1897. But for the sake of precision and certainty these provisions were made. Some of the clauses (a) to (m) in sub-section (2) of section 297 are such that a different intention appears from them and they override or supplement the provisions contained in section 6 of the General Clauses Act. Section 297(2) provides :

" Notwithstanding the repeal of the Indian Income-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act),--......

(f) any proceeding for the imposition of a penalty in respect of any assessment completed before the 1st day of April, 1962, may be initiated and any such penalty may be imposed as if this Act had not been passed ;

(g) any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March, 1962, or any earlier year, which is completed on or after the 1st day of April, 1962. may be initiated and any such penalty may be imposed under this Act. "

All the 12 assessments although they related to the years earlier than the year ending on the 31st day of March, 1962, were completed after the coming into force of the 1961 Act. Hence a proceeding for the imposition of penalty in respect of any one of those years had to be and was initiated under the 1961 Act in accordance with clause (g). Clause (f) did not come into play and no penalty was imposed under section 28 of the 1922 Act. That being so, as rightly pointed out by the High Court, section 28(4) was not a bar to the launching of the prosecution as no such provision is to be found either in section 271 or in any other section of the 1961 Act. Section 28(4) says :

" No prosecution for an offence against this Act shall be instituted in respect of the same facts on which a penalty has been imposed under, this section. "

The said provision is not available to the appellant to bar the institution of the prosecution for an offence against either of the two Acts when a penalty has been imposed not under section 28(1) of the 1922 Act but under section 271(1) of the 1961 Act.

Grover J., delivering the judgment on behalf of the Constitution Bench of this court in the case of Jain Bros v. Union of India, has pointed out at page 263 :

" It is obvious that for the imposition of penalty it is not the assessment year or the date of the filing of the return which is important but it is the satisfaction of the income-tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty. Whatever the stage at which the satisfaction is reached, the scheme of sections 274(1) and 275 of the Act of 1961 is that the order imposing penalty must be made after the completion of the assessment. The crucial date, therefore, for purposes of penalty is the date of such completion. "

At page 264, says the learned judge further :

" Both sections 271(1) and 297(2)(g) have to be read together and in harmony and so read the only conclusion possible is that for the imposition of a penalty in respect of any assessment for the year ending on March 31, 1962, or any earlier year which is completed after the first day of April, 1962, the proceedings have to be initiated and the penalty imposed in accordance with the provisions of section 271 of the Act of 1961. "

Even clause (1) of article 20 of the Constitution does not help the appellant. It is not post facto legislation which is being pressed into service against him. As pointed out by a Constitution Bench of this court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, at page 1198 :

" This article in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well known case of Phillips v. Eyre and also by the Supreme Court of U. S. A. in Calder v. Bull. In the English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt as to the paramount importance of the principle that such ex post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust. "

Article 20(1) also prohibits the subjecting of any person to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. On the facts alleged against the appellant, if found to be true, at the time he made the false statements in the declarations he did commit an offence under section 52 of the 1922 Act. Sub-section (4) of section 28 did not obliterate the factum of the commission of the offence and did not transmute the offence into an innocent act because of the imposition of penalty under section 28. Such imposition merely barred the prosecution for the trial and conviction of the commission of the offence. The penalty having been imposed under section 271 of the 1961 Act the launching of the prosecution became permissible and was not hit by article 20(1) of the Constitution. We are inclined to think that the offence, if any, committed by the appellant was under section 52 of the 1922 Act as the allegedly false statements in declarations were made at a time when the said Act was in force. No false statement in any declaration seems to have been made under the 1961 Act to form the basis of a charge against the appellant under section 277 of that Act. The punishment provided in this section is greater than the one engrafted in section 52 of the 1922 Act. To that extent only the appellant would be entitled to press into service the second part of clause (1) of article 20 of the Constitution which says that no person shall :

" be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. "

It is advisable to discuss and dispose of a new point which arose during the hearing of these appeals. Sub-section (1) of section 297 of the 1961 Act repealed the 1922 Act including section 52. In sub-section (2) no saving seems to have been provided for the launching of the prosecution under the repealed section 52 of the 1922 Act. It does not seem correct to take recourse to clause (h) of section 297(2) to make the offence come under section 277 of the 1961 Act as was endeavoured to be done by the respondent in the first 12 complaint petitions. But then from no clause under sub-section (2) a different intention appears in this regard from what has been said in section 6 of the General Clauses Act. On the facts alleged the criminal liability incurred under section 52 of the 1922 Act remains unaffected under clause (c) of section 6 of the General Clauses Act. In the case of T. S. Baliah v. T. S. Rangachari Ramaswami J., delivering the judgment of this court, has said at page 71 :

" The principle of this section is that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal. In other words, whenever there is a repeal of an enactment the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 6 of the General Clauses Act, therefore, will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material. "

In the result, all the appeals fail and are dismissed.

Appeals dismissed.

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